Mr. Radich is charged with violating Section 1425 of the Penal Law, which provides that "no person shall publicly mutilate, deface, defile or defy, trample upon or cast contempt upon either by words or act" an American flag. On Wednesday he was served with a summons that ordered him to appear in criminal court next Wednesday.

"What is at stake," the Civil Liberties Union said in a news release, "is the right of artists to freely express themselves and to use all the materials available to them." It called the prosecution of Mr. Radich "a form a cultural suppression” and said the Police Department was seeking to "sanctify the symbols of government."

"This they cannot do because the First Amendment protects the right to freely criticize the Government and all its institutions," the group said.

HANGING THE AMERICAN FLAG

To sculpture Marc Morrel, who made it, and dealer Stephen Radich, who is currently displaying it in his window, the bundle below in a hangman's noose looks like a work of art that incorporates the U.S. flag. To Patrolman John P. Burns of the 19th precinct, it looked like a violation of Section 1425-16D of the Penal Law. Spurred by "viewers' complaints," he issued a Criminal Court summons to dealer Radich for having "publicly displayed the American flag that was defiled and mutilated" (sic). To the New York Civil Liberties Union, which is defending the case, it looks like Section 1425-16D is unconstitutional. "At stake," says the NYCLU, "is the right of artists to freely express themselves and to use all the materials available to them."

(The Record on Appeal in People v. Sidney Street referred to is retained in the committee files.)

Mrs. KELLY. I didn't hear your last remark that you made, Mr. Zelenko.

Mr. ZELENKO. The case is before the Court of Appeals and will be argued on May 17.

Mrs. KELLY. I thought you added something.

Mr. POFF. According to the information available to the members of the subcommittee, the penalties under the New York law are $500

fine and 1 year, or both, and a note which is unclear to me, after the date September 1, 1967, $1,000 and 1 year, or both.

Has the New York law been amended recently?

Mrs. KELLY. I did not know that it had been, Mr. Chairman. I have not that amendment in the New York State law which I have present before me.

Mr. POFF. Thank you.

Now, one final question.

You have indicated that the reach of the new law should be nationwide.

Mrs. KELLY. Pardon me?

Mr. POFF. That the reach and application of the new law should be nationwide.

Mrs. KELLY. Yes, Mr. Poff.

Mr. POFF. Do you feel that it would be appropriate to give the reach of the law extraterritorial effect? I mean by that, do you think the law should apply to American citizens who commit an act of desecration on foreign soil?

Mrs. KELLY. Well, I don't know just how you could apply that, Mr. Chairman, but if it is on the territory of the United States abroad, I think it should apply. I am not sure of jurisdiction on the foreign soil. I don't know just what you could do.

I would say this: If in any way you could have that operative, I certainly would feel that it should be because it doesn't matter where the desecration takes places, in my estimation, it is why it takes place, and destroying the symbol of the United States.

Mr. POFF. Thank you.

Mr. McCLORY. Mr. Chairman, may I ask one more question? As you recall, Mrs. Kelly, recently in the city of New York there was the burning of a French flag, do you think the provisions of this statute should be extended to desecration or burning of a foreign flag?

Mrs. KELLY. In recalling several of these situations, I believe this was not the first incidence of the burning of a foreign flag on our soil.

I understand one was burned-the Yugoslav or United Kingdom flag was burned-in one of the Western cities sometime back.

flag

I do feel that I would like some action taken on this for the simple reason I think that we should guard the rights of other nations at home as well as hoping that the rights of our flag would not be desecrated abroad.

It should be reciprocal in some form.

Mr. McCLORY. Thank you. That is a very thoughtful statement and a constructive suggestion. Thank you.

Mr. ROGERS. Thank you, Mrs. Kelly. We appreciate your taking the time out to testify in behalf of your bill.

With that, we will dismiss you and call our next witness.

Mrs. KELLY. Thank you. I will submit for the record a list of Federal officers who have power to arrest under Federal law, even though I am sure this learned committee is acquainted with the facts.

ARREST POWERS OF FEDERAL AND STATE OFFICERS

This will refer to your request of May 4, 1967, for a list of Federal Officers who have power to arrest under Federal Law. Listed below are the Federal Officers, other than military authorities, specifically given such power under

the United States Code, the section of the Code from which such authority is derived, and a short description of the extent of this power:

Federal Bureau of Investigation (18 U.S.C. §3052).-Director, Associate Director, Assistant Directors, inspectors, and agents may make arrests without warrants "for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

Bureau of Prisons Employees (18 U.S.C. § 3051).—May make arrests without warrants for jail breaks, jail mutinies, and related offenses.

Capitol Police (40 U.S.C. § 212a).-May make arrests "within the United States Capitol Buildings and grounds for any violations of any law of the United States or of any State, or any regulation promulgated pursuant thereto." Coast Guard (14 U.S.C. § 89).-May make arrests "upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States."

Immigration and Naturalization Service (8 U.S.C. § 1357).-Immigration officers and employees under regulations prescribed by the Attorney General may arrest "any alien who . . . is entering or attempting to enter the United States [illegally]" or aliens who he believes are illegally in the United States, or has committed felonies "which are cognizable under any law of the United States regulating the admission, exclusion, or expulsion of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest."

Library of Congress Special Police (2 U.S.C. § 167h).—Limited arrest power within the Library of Congress buildings and grounds for certain specified offenses set forth in 2 U.S.C. §§ 167a-167g.

National Forest Service (16 U.S.C. § 559).—All persons employed in the Forest Service of the United States shall have authority to make arrests for the violation of laws and regulations relating to the national forests and national parks.” Superintendents of certain National Parks are specifically given the same power in other sections of the Code.

Courts, Magistrates, and Other State and Federal Officers (18 U.S.C. § 3041).— "For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States commissioner, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned, or bailed . . . for trial before such court of the United States as by law has cognizance of the offense. . ."

Secret Service, Treasury Department (18 U.S.C. § 3056).—Power to “detect and arrest any person committing any offense against the laws of the United States relating to coins, obligations, and securities of the United States and of foreign governments" and other banking violations: "to make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

Sergeants at Arms of the Senate and of the House of Representatives (40 U.S.C. § 193).-Power to arrest and detain persons violating regulations made by them for the purpose of "preserving the peace and securing the Capitol from defacement, and for the protection of the public property therein."

Smithsonian Institution Special Police (40 U.S.C. § 193x).—May make arrests within the blocks in which Smithsonian Buildings are located for violations of laws relating to property therein specified in 40 U.S.C. §§ 193n-193q).

Superintendents of National Cemeteries (24 U.S.C. 286).-Power to arrest any person willfully destroying, mutilating, defacing, or otherwise injuring trees, tombstones, or other structures or plant life within the limits of any national cemetery.

United States Marshal and Deputies (18 U.S.C. § 3053).—“May make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

State officers have the power to arrest for Federal violations through Article VI of the Constitution, the Supremacy Clause. This authority is codified under

Title 18, section 3041 of the United States Code which is reprinted above (see "Courts, Magistrates, and Other State and Federal Officers").

E. JEREMY HUTTON,
Legislative Attorney.

Mr. ROGERS. The next witness is Mr. Richard L. Roudebush, accompanied by Joseph A. Scerra, senior vice commander in chief of the Veterans of Foreign Wars.

I had a promise that this gentleman would be short, but I want to show you what came to my office this morning. This is a stack of letters, just 1 day's mail, and I think it is all in connection with this legislation. Mr. MCCLORY. Would the chairman yield?

I note that the Congressman from Indiana is appearing with the senior vice commander in chief of the Veterans of Foreign Wars. I think it is interesting to call to the attention of the other members of the committee that our distinguished colleague from Indiana served, himself, as the national commander of the Veterans of Foreign Wars, in 1958.

Mr. ROGERS. And filed a bill in the last session on desecration of the American flag.

STATEMENT OF HON. RICHARD L. ROUDEBUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA; ACCOMPANIED BY JOSEPH SCERRA, SENIOR VICE COMMANDER IN CHIEF OF THE VETERANS OF FOREIGN WARS OF THE UNITED STATES

Mr. ROUDEBUSH. It is a pleasure and privilege to appear today before this distinguished subcommittee and I wish to express my thanks to Mr. Rogers and his colleagues for this opportunity.

The gentleman accompanying me today is Mr. Joseph Scerra, of Gardner, Mass., senior vice commander in chief of the Veterans of Foreign Wars of the United States. Mr. Scerra will assume the national commandership of the VFW next August and is appearing today in behalf of the present national commander, Mr. Leslie Fry, who is presently on a trip to Vietnam.

As many of you know, I have been involved in proposed legislation to prohibit flag desecration for about a year and a half.

My original interest in putting a Federal law on the books to provide criminal penalties for such acts arose from an incident in my home State of Indiana.

Early last year an individual from Chicago came to the Purdue University campus at West Lafayette, Ind., to speak before a group identified as the Students for a Democratic Society.

During the course of this person's presentation he took an American flag, spat upon it, ripped it to shreds and threw it on the stage, then proceeded to stomp on the flag.

Following the program, the individual returned to Chicago and when the local prosecutor brought misdemeanor charges to bear against this man, he was thwarted because the offender could not be extradited due to the minor nature of the charge.

My office was contacted to see if there was any Federal law which could be used to pursue this prosecution.

I quickly discovered, of course, that our Federal flag code does not provide any penalty for the desecration of the flag except in the District of Columbia where there is a penalty of a $100 fine and 30 days in jail.

Soon after this incident, I requested our legislative counsel to draw a bill designed to cover the 50 States and the District of Columbia which would provide a $1,000 fine and 1 year in jail.

This bill died in the 89th Congress, and I reintroduced identical legislation on the first day of the 90th Congress, referred to as H.R.

1207.

In our research on the matter of flag desecration, we asked the Library of Congress to furnish a report on the various State laws. This investigation revealed a wide range of laws regarding the national flag.

All States have laws forbidding flag desecration. Two States, however, provide no penalty-New Hampshire and Tennessee. The others set penalties ranging from fines of $5 to $2,000 and imprisonment of from 10 days to 1 year.

In States where the offense is covered by very minor penalties of a fine and no jail there, there does appear a reluctance by some jurisdictions to prosecute.

We have noted this in New York where the desecration of a flag is a misdemeanor punishable by a $50 fine.

And in my own State of Indiana, where recently we had another incident involving a professor who burned a flag in front of his English class to prove, among other things, that the American flag is nothing more than cloth mounted on a stick.

Despite the revulsion in our State to this act, the local jurisdiction has not at this date sought prosecution and the local county prosecutor commented, "It's not worth it."

Perhaps he is right because for Indiana to go to the expense of trying and convicting this professor, who, incidentally, is not even a citizen of the United States, would result in a punishment of only a $5 fine.

There is good evidence that our States are aware of this problem because in recent general assemblies; namely, Georgia and Indiana, we have had new "get tough" legislation on flag desecration. Our new Indiana law, modeled after my Federal bill, will provide 1 year and a $1,000 fine for flag desecration when it becomes effective next September.

But, gentlemen, I do not believe that it is wise for us to delay any longer passage of a Federal bill against flag desecration to provide a uniform statute assuring swift prosecution and punishment.

My bill was drawn to apply to the 50 States and the District of Columbia, and will serve as a deterrent to further acts of flag desecration, and provide an appropriate penalty for violators.

I would like to express my strong support for legislation to prohibit flag desecration, and I believe we should act swiftly in view of the rising number of incidents.

The recent picture on the front page of every newspaper in America, and I have that picture here with me today, which depicted a group of so-called peace demonstrators burning the American flag in Central Park, has unwittingly served to focus attention on the need for antidesecration legislation.